California Att’y Gen Says Non-Discrimination Is Unconstitutional

[NOTE: This post has been UPDATED twice three times.]

Jerry Brown (remember him?) — once California governor, now California Attorney General, and possible future California governor — says in a letter to the California Supreme Court that the prohibition against preferential treatment based on race or gender that was added to the California Constitution by Prop. 209 is unconstitutional.

To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional. However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution….

Brown’s argument seems to be identical to one the ACLU and NACCP tried, most recently, in Michigan, to no avail.

Closer to home, it also seems to be identical to one even the Ninth Circuit all but laughed out of court in rejecting a challenge to Prop. 209 right after it passed. As the opinion by Judge O’Scannlain put it:

…. Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.

It appears that Jerry Brown is asking the California Supreme Court to decide who is incoherent, Jerry Brown or the Fourteenth Amendment. The choice would seem to be clear, but then nothing is completely clear in California.

UPDATE

The Chronicle of Higher Education takes note of Attorney General’s Brown’s letter today, here. If you have access to the Chronicle, the comments to this note are worth reading.

UPDATE II [24 April]

The Los Angeles Times has a good article on this issue today. It quotes, to good effect, Sharon Browne, a lawyer with the Pacific Legal Foundation who is challenging a San Francisco law giving preferences to women and minorities. (It is that case that prompted the Calif. Supreme Court’s request for an opinion on Prop. 209 from Attorney General Brown.)

“It would be incredibly strange for the California Supreme Court, 13 years after Prop. 209 was adopted, to say at this time it is unconstitutional,” said Browne, a lawyer with the Pacific Legal Foundation, a conservative public interest law firm.

The state high court unanimously ruled in 2000 that Proposition 209 prohibited a San Jose outreach program. That ruling cited a 1997 decision by the U.S. 9th Circuit Court of Appeals that found Proposition 209 constitutional.

Strange indeed. If the California Supreme Court were now to adopt the view that Prop. 209 is unconstitutional, would it have to conclude that it was unanimously wrong in its 2000 opinion, City of San Jose v. Hi-Voltage Wire Works?

UPDATE III [9 May]

I have discussed Sharon Browne’s reply (in a letter brief from the Pacific Legal Foundation) to Jerry Brown’s argument in a separate post, The Moonbeamish Argument Of Calif. AG Jerry Brown.